United States District Court, D. Oregon, Eugene Division
THE STATE OF OREGON; KATE BROWN, Governor; ELLEN ROSENBLUM, Attorney General; and THE CITY OF PORTLAND, Plaintiffs,
DONALD J. TRUMP, President of the United States, in his official capacity; WILLIAM P. BARR, Attorney General of the United States, in his official capacity; and THE UNITED STATES OF AMERICA, Defendants.
OPINION AND ORDER
MICHAEL J. MCSHANE UNITED STATES DISTRICT JUDGE
present dispute touches upon many of the same principles and
tensions which have animated our Republic's legal and
political discourse since its founding. The President of the
United States and his Attorney General seek to advance their
policy priorities by pressuring states and localities to
comply with two immigration-related laws and by withholding
federal funds from jurisdictions which refuse to assist
immigration authorities. The laws at issue, 8 U.S.C.
§§ 1373 and 1644, prohibit states and localities
from enacting rules which prevent their employees from
sharing a person's immigration status with federal
officials. The State of Oregon and the City of Portland, both
of which have been targeted, believe that Sections 1373 and
1644 are unconstitutional intrusions upon their legislative
independence. They also believe that the funding conditions
imposed by the Attorney General are contrary to the intent of
Congress. The case comes before the Court on Defendants'
Motion to Dismiss and Plaintiffs' Motion for Summary
Judgment. Because Sections 1373 and 1644 violate the Tenth
Amendment, and Defendants otherwise lack the authority to
withhold the disputed funds, Plaintiffs' motion is
GRANTED in part.
The Byrne JAG Program
present conflict centers on the Edward Byrne Memorial Justice
Assistance Grant Program (“Byrne JAG Program”).
See Pub. L. No. 109-162, § 1111, 1119 Stat.
2960, 3094 (2006) (codified as amended at 34 U.S.C.
§§ 10151-10158). The Byrne JAG Program is a federal
grant program administered by the Office of Justice Programs,
a subdivision of the United States Department of Justice.
See 34 U.S.C. §§ 10101-10102, 10141,
10151. The purpose of the Byrne JAG Program is to support
state and local criminal justice efforts by providing an
additional source of funding for personnel, equipment,
training, and other needs. Id. § 10152(a)(1).
States and localities may use Byrne JAG funds to support
criminal justice initiatives in several different areas,
including law enforcement, prosecution, crime prevention,
corrections, drug treatment, technology, mental health, and
victim and witness services. See Id. §§
the Byrne JAG Program, grants are distributed directly to
states and localities according to a formula, the variables
of which are derived from a jurisdiction's population and
violent crime statistics. 34 U.S.C. § 10156. To receive
and draw upon a Byrne JAG award, a jurisdiction must apply to
the Attorney General in the form and manner prescribed by
statute, see Id. §§ 10153, 10155, and
comply with all lawful conditions outlined in the grant
solicitation and award documents, see, e.g., Schmidt
Decl. Exs. 1, 11, ECF No. 22; Defs.' Req. for Judicial
Notice in Supp. Mot. Dismiss (“RJN”) Exs. E, F,
ECF No. 15. A jurisdiction, once awarded its statutory share
of funds, may also make subawards to local governments and
community organizations. 34 U.S.C. § 10152(b). Although
funds appropriated by Congress for the Byrne JAG Program must
be allocated according to the statutory formula, the Attorney
General retains some discretion to reserve and redistribute
certain funds. See Id. §§ 10156(f),
History of Participation
State of Oregon had, until 2017, received Byrne JAG funds
every year since the program's creation in 2005. Schmidt
Decl. ¶ 6; Nordeen Decl. ¶ 2, ECF No. 25; see
also RJN Ex. A. During that time, the State of Oregon
used its more than $26 million in Byrne JAG funds to support,
among other things, programs for mental health treatment,
technology improvement, and drug treatment and enforcement.
Schmidt Decl. ¶ 9. With respect to the contested FY 2017
award, the State of Oregon plans to use its funds to support
specialty courts designed to address root causes of criminal
activity and provide statewide assistance to local crime
victims. Schmidt Decl. ¶¶ 12, 15, Ex. 4 at 2, 7-8,
16-17. With respect to the contested FY 2018 award, the State
of Oregon plans to use its funds to support specialty court
programs which target non-violent felony offenders in an
integrated, systemic approach to reduce drug use and
recidivism while increasing public safety. Schmidt Decl.
¶ 22, Ex. 12 at 1-2, 8-14, 20-21.
the City of Portland had, until 2017, received Byrne JAG
funds every year since the program's creation in 2005.
Nordeen Decl. ¶ 2; see also RJN, Ex. B. During
that time, the City of Portland used its Byrne JAG funds to,
among other things, purchase bulletproof vests and
special-threat plates, acquire tactical medical kits, install
Global Positioning Systems, and add two Victim Advocates to
the Portland Police Bureau's Sex Crimes Unit. Nordeen
Decl. ¶ 3. In addition, the City of Portland has
historically distributed funds to subrecipients Multnomah
County and the City of Gresham, which have used those funds
to, among other things, support a Neighborhood Deputy
District Attorney, purchase police equipment, and add a
full-time Parole and Probation Officer. Nordeen Decl. ¶
4. The City of Portland plans to support similar initiatives
with the contested FY 2017 and FY 2018 funds. Nordeen Decl.
Exs. 2, 5.
FY 2017 and FY 2018 Funding Conditions
in 2017, the Attorney General imposed three new
immigration-related conditions on the receipt of Byrne JAG
funds. See generally Schmidt Decl. Exs. 1-3; Nordeen
Decl. Ex. 1; RJN Ex. D. The conditions are included in the FY
2017 state and local solicitations promulgated by the
Department of Justice and, more importantly, the award
agreements adopted by grantees. See, e.g., Schmidt
Decl. Ex. 1; Nordeen Decl. Ex. 1; RJN Ex. D. As relevant
here, a jurisdiction must formally agree to each condition
prior to drawing upon an award of FY 2017 Byrne JAG funds.
See, e.g., RJN Ex. D ¶ 1. The FY 2017
conditions can be summarized as follows:
• Notice Condition : A grantee must
provide 48 hours' “advance notice”-or as much
advance notice as is “practicable”-of the
“scheduled release date and time” of any alien in
the jurisdiction's custody if the jurisdiction receives a
“formal written request” from the United States
Department of Homeland Security (“DHS”). RJN Ex.
D ¶ 55; see also Schmidt Decl. ¶¶
13-15, Exs. 1-3; Nordeen Decl. Exs. 1, 4.
• Access Condition : A grantee must
allow DHS personnel to “access” any detention
facility which it maintains and “meet with individuals
who are (or are believed . . . to be) aliens” and
“inquire as to their right to be or remain in the
United States.” RJN Ex. D ¶ 55; see also
Schmidt Decl. ¶¶ 13-15, Exs. 1-3; Nordeen Decl.
Exs. 1, 4.
• Compliance Condition : A grantee must
certify that it complies with 8 U.S.C. § 1373. RJN Ex. D
¶ 54; see also Schmidt Decl. ¶¶
13-15, Exs. 1-3; Nordeen Decl. Exs. 1, 4. Section 1373
provides that no “State or local government entity or
official may . . . prohibit, or in any way restrict, any
government entity or official from sending to, or receiving
from, the Immigration and Naturalization Service information
regarding the citizenship or immigration status . . . of any
individual.” 8 U.S.C. § 1373(a).
2018, the Attorney General again imposed immigration-related
conditions on the receipt of Byrne JAG funds. See
generally Schmidt Decl. Ex. 11; Nordeen Decl. Ex. 4; RJN
Exs. E, F. Two of those conditions are substantively
indistinguishable from the Notice and Access Conditions
described above. RJN Ex. E ¶¶ 45-46; see
also Schmidt Decl. ¶ 22, Ex. 11 at 1, 35-37, 42-43;
Nordeen Decl. Ex. 4 at 36-37, 42-43. A third condition merely
expands the Compliance Condition to include 8 U.S.C. §
1644-a statute which is functionally equivalent to Section
1373- and to require that jurisdictions describe any
“laws, policies, or practices related to whether, when,
or how employees may communicate with DHS or [Immigration and
Customs Enforcement].” Schmidt Decl. Ex. 11 at 27-28,
52; see also Nordeen Decl. Ex. 4 at 52; RJN Ex. E
¶ 47. But a fourth and final FY 2018 condition imposes a
new restriction on grantees' conduct:
• Disclosure Condition: A grantee must
not publicly disclose “federal law enforcement
information in a direct or indirect attempt to conceal,
harbor, or shield from detection any fugitive from
justice” or any “alien who has come to, entered,
or remains in the United States” in violation of
federal law. RJN Ex. E ¶ 44.
FY 2017 Byrne JAG awards, grantees must formally agree to
each of the immigration-related conditions prior to drawing
upon their FY 2018 funds. See, e.g., RJN Exs. E, F.
Thus, even if a jurisdiction receives a notice of award from
the Department of Justice, it may not draw upon those funds
until it agrees to the conditions listed in the award
document. See RJN Ex. E ¶ 1 (“Failure to
comply with any one or more of these award requirements . . .
may result in the Office of Justice Programs . . .
withhold[ing] award funds, disallow[ing] costs, or
suspend[ing] or terminat[ing] the award.”); see
also Schmidt Decl. Ex. 11 at 1; Nordeen Decl. Ex. 4 at
FY 2017 and FY 2018 Awards
applied in August 2017 for a FY 2017 Byrne JAG award and in
August 2018 for a FY 2018 Byrne JAG award. See
Schmidt Decl. ¶¶ 15, 22, Exs. 4, 11; Nordeen Decl.
¶¶ 6, 12, Exs. 2, 5. Based on the statutory
formula, the State of Oregon expected to receive $2, 034, 945
for FY 2017 and $2, 092, 704 for FY 2018, Schmidt Decl. Ex.
13 at 1, Ex. 14 at 1, while the City of Portland expected to
receive $385, 515 for FY 2017 and $391, 694 for FY 2018,
see Nordeen Decl. ¶ 11, Ex. 2. Defendants
anticipated issuing Byrne JAG award notifications by
September 30, 2017 for FY 2017 grantees and September 30,
2018 for FY 2018 grantees. See Schmidt Decl. Ex. 1
at 31, Ex. 11 at 35; Nordeen Decl. Ex. 1 at 29, Ex. 4 at 35
represented at oral argument, however, the State of Oregon
did not receive notice of its FY 2017 or FY 2018 Byrne JAG
awards until July 2019. That delay was the result of concerns
within the Department of Justice that at least one Oregon
law, Or. Rev. Stat. § 181A.820, prevents the State of
Oregon from satisfying the Notice, Access, and Compliance
Conditions. See Schmidt Decl. ¶¶ 17-18,
Exs. 6-9. Section 181A.820 provides in relevant part that
“[n]o law enforcement agency of the State of Oregon or
any political subdivision of the state” may use
“agency moneys, equipment, or personnel” to
“detect or apprehend” persons whose only
transgression is the violation of “federal immigration
laws.” Although the State of Oregon recently
received its FY 2017 and FY 2018 awards, the Department of
Justice's view of Section 181A.820 is seemingly
unchanged. The State of Oregon, as such, cannot accept or
draw upon the funds without risking penalties. See,
e.g., Schmidt Decl. Ex. 3 (stating that the Department
of Justice will, among other actions, “claw back”
funds from jurisdictions which violate the challenged
City of Portland is in a similar position. Although the City
of Portland received its FY 2017 Byrne JAG award on October
10, 2018, Defendants only issued the award pursuant to a
preliminary injunction in City of Evanston v.
Sessions, No. 18-cv-4853 (N.D. Ill. Aug. 9, 2018).
Defendants have yet to issue the City of Portland its FY 2018
Byrne JAG award. Nordeen Decl. ¶ 14. Despite multiple
inquiries from the City of Portland, the Department of
Justice has offered no explanation for the ten-month delay.
Nordeen Decl. Exs. 6-7. As a political subdivision of the
State of Oregon, however, the City of Portland is subject to
Section 181A.820. Its Police Bureau is also bound by an
internal rule, Directive 810.10, which mirrors Section
181A.820 and prohibits personnel from “enforcing or
assisting in the enforcement of federal immigration
laws.” RJN Ex. G at 2; see also Nordeen Decl.
¶ 17. Thus, even if Defendants were to issue a FY 2018
award to the City of Portland, it would be unable to accept
or draw upon those funds without risking penalties for
perceived violations of the Notice, Access, and Compliance
Conflicting Policy Priorities
maintain that the contested conditions and statutes-and, by
implication, the pressure on Plaintiffs to repeal their
allegedly incompatible laws and policies-are essential to a
properly functioning system of federal immigration laws.
See Defs.' Mot. Dismiss 1, ECF No. 14. They
point in particular to the extensive intergovernmental
coordination and cooperation contemplated by the Immigration
and Nationality Act (“INA”), 8 U.S.C.
§§ 1101-1537. See Defs.' Mot. Dismiss
6-9. As relevant here, that cooperation and coordination
includes, among other things, the decision to allow state and
local governments to prosecute and punish illegal aliens who
commit crimes before allowing the federal government to take
immigration measures against those same persons. See
8 U.S.C. § 1231; see also Id. § 1226(c)(1)
(mandating that immigration detention for removal proceedings
begin only “when the alien is released” from
state or local criminal detention). Defendants believe that
this and other features of the INA are only practicable if
state and local governments provide information and access to
however, believe that the health, welfare, and public safety
of their residents is best served by refraining from the
enforcement and administration of federal immigration laws.
See Shah Decl. Exs. 1-4; Nordeen Decl. ¶¶
16-17, Ex. 8. That determination, they explain, is reflected
in the laws and policies targeted by Defendants. See
Shah Decl. Exs. 1-4; Nordeen Decl. ¶¶ 16-17, Ex. 8.
According to Plaintiffs, those laws and policies are
instrumental to ensuring that all members of their
communities feel safe cooperating with and obtaining the
assistance of law enforcement agencies. See Shah
Decl. ¶¶ Exs. 1-4; Nordeen Decl. ¶¶
16-17, Ex. 8. In particular, Plaintiffs believe that, when
state and local officials are associated with federal
immigration enforcement, vulnerable victims and witnesses are
less likely to come forward and report crimes, creating a
danger to all members of their communities. See Shah
Decl. Exs. 1-4; Nordeen Decl. ¶¶ 16-17, Ex. 8.
Plaintiffs have, as such, declined to change their laws and
policies in the face of funding pressures from the President
and his Attorney General.
Procedural History of the Lawsuit
State of Oregon initiated the present action on November 9,
2018. Shortly thereafter, the City of Portland joined in the
suit and, together, the State of Oregon and the City of
Portland submitted an amended complaint on November 21, 2018.
In their First Amended Complaint (“FAC”), ECF No.
3, Plaintiffs challenge Defendants' authority to impose
the Notice, Access, and Disclosure Conditions. They also
bring a facial constitutional challenge to Sections 1373 and
1644, the statutes on which the Compliance Condition is
based. To remedy their injuries, Plaintiffs seek declaratory,
injunctive, and mandamus relief. On March 5, 2019, Defendants
filed a Motion to Dismiss. In response, on April 8,
Plaintiffs filed a Motion for Summary Judgment, ECF No. 21.
After briefing and oral argument, both motions are now before
Motion to Dismiss Under Rule 12(b)(1)
motion to dismiss under Fed.R.Civ.P. 12(b)(1) tests the
subject matter jurisdiction of a federal court. Under the
U.S. Constitution, this Court is without jurisdiction to
resolve any claim which is not ripe for review, Thomas v.
Union Carbide Agric. Prods. Co., 473 U.S. 568, 579
(1985), or which a plaintiff lacks standing to assert,
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). At a constitutional minimum, standing requires a
plaintiff to show that she has “suffered some actual or
threatened injury as a result of the putatively illegal
conduct of the defendant, and that the injury can be traced
to the challenged action and is likely to be redressed by a
favorable decision.” Valley Forge Christian Coll.
v. Ams. United for Separation of Church & State,
Inc., 454 U.S. 464, 472 (1982) (internal quotation marks
and citations omitted). Similarly, a claim is ripe within the
meaning of Article III if it presents “concrete legal
issues” in the context of “actual cases, not
abstractions.” United Pub. Workers v.
Mitchell, 330 U.S. 75, 89 (1947) (internal quotation
marks and citations omitted). The party invoking federal
jurisdiction bears the burden of establishing both
requirements. Lujan, 504 U.S. at 561.
Motion to Dismiss Under Rule 12(b)(6)
survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
complaint must contain factual allegations sufficient to
“state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). A claim is plausible on its face when
the factual allegations allow a court to infer the
defendant's liability based on the alleged conduct.
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The
factual allegations must present more than “the mere
possibility of misconduct.” Id. at 678. When
considering a motion to dismiss, a court must accept all
allegations of material fact as true and construe those facts
in the light most favorable to the non-moving party,
Burget v. Lokelani Bernice Pauahi Bishop Trust, 200
F.3d 661, 663 (9th Cir. 2000), but it is “not bound to
accept as true a legal conclusion couched as a factual
allegation, ” Twombly, 550 U.S. at 555. If a
complaint is dismissed, the court must grant the plaintiff
leave to amend unless it “determines that the pleading
could not possibly be cured by the allegation of other
facts.” Doe v. United States, 58 F.3d 494, 497
(9th Cir. 1995).
Motion for Summary Judgment Under Rule 56(a)
district court must award summary judgment “if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). A fact is
“material” if it could affect the outcome of the
case and an issue is “genuine” if a reasonable
jury could find in favor of the non-moving party. Rivera
v. Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir.
2005) (citation omitted). When ruling on a motion for summary
judgment, the court must view the evidence in the light most
favorable to the non-moving party and draw all reasonable
inferences in her favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). If the movant carries
her burden, then the non-moving party must present
“specific facts showing that there is a genuine issue
for trial.” Matsushita Elec. Indus. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (internal quotation marks
omitted) (citing Fed.R.Civ.P. 56(e)). The “mere
existence of a scintilla of evidence in support of the
plaintiff's position [is] insufficient” to avoid
summary judgment. Liberty Lobby, Inc., 477 U.S. at
challenge the Notice, Access, Compliance, and Disclosure
Conditions on three main grounds. First, Plaintiffs argue
that Defendants are without constitutional or statutory
authority to impose the Notice, Access, and Disclosure
Conditions upon recipients of Byrne JAG funds and that the
promulgation of those conditions therefore infringes on the
power vested in Congress under the Spending Clause of the
U.S. Constitution. Second, Plaintiffs contend that, insofar
as the Compliance Condition is premised on a valid
congressional delegation of condition-making authority, that
authority cannot include the conditioning of funds on
compliance with statutes which violate the Tenth Amendment.
Finally, Plaintiffs argue that, even if they possess the
statutory authority to impose all four of the challenged
conditions, Defendants run afoul of limitations inherent in
the Spending Clause. ...